What Employers Need To Know About Social Media

By: Robert W. Small

The explosion of the use of social media far surpasses any development in human communication since Gutenberg’s printing press. LinkedIn and Facebook combined boast more than 850 million users. Many businesses have adopted social media sites as part of their marketing platform and review the social media sites of employees and prospective employees to garner information used in making employment decisions. There can be no doubt that social media sites are valuable tools for businesses both in marketing their goods and services and in managing their employees. There likewise is no doubt that the use of social media for these purposes in an unthinking and unplanned way creates the potential for significant liability for businesses on many fronts.

A. Issues with Accessing Employee or Prospective Employee Social Media Sites.

By their nature, social media are public not private endeavors. An employer does not violate any law merely by accessing the public pages of employees’ or prospective employees’ social media pages. Employers must recognize, however, that in doing so they might learn information about an employee or prospective employee which an employer lawfully is not permitted either to seek from the employee or prospect or use in making employment decisions. For example, an employee or prospective employee might disclose the fact of or facts indicating that the employee is disabled. If the employer thereafter makes an adverse employment decision concerning that employee, the employer faces the potential of a discrimination lawsuit under both federal and state laws prohibiting discrimination based on a disability. As a practical reality, in any such lawsuit the employer will bear the burden of demonstrating that the adverse employment decision was not based on information about the disability.

Some employers have been so bold as to demand that prospective employees provide passwords so that the employer can access the private pages of the individual’s social media sites or to surreptitiously access those sites by causing one employee to “friend” another employee or prospective employee and then access the private pages through that existing employee. This conduct runs the risk of invasion of privacy lawsuits. Several states are considering legislation prohibiting employers from accessing the private pages of social media pages. Maryland became the first state to enact such a law and Illinois, Delaware and California soon followed suit.

Employers who intend to access even public pages of employees’ or prospective employees’ social media pages should construct a social media policy that, at a minimum, will create a Chinese wall between the person looking at the website and the person making employment decisions.

It is not uncommon for employers to discover when looking at even the public pages of an employee’s social media site expressions or gripes concerning the employer or its products or services. Employers must resist the temptation to engage in immediate disciplinary measures and carefully analyze the employee’s comments. Applying immediate discipline or worse, adopting a policy that employees may not have any expression on social media concerning the company, is fraught with danger. Under the National Labor Relations Act, [29 U.S.C.§§151 et seq.] employees have the right to engage in collective action. The National Labor Relations Board has issued several advisories, setting forth its policy and views regarding employer policies on the use of social media. Prohibiting employees from discussing on their social media pages matters of concern arising within the context of their employment might violate the employees’ right to collective action. For this reason any employer policy with regard to employees expressing their views on a social media page must be drafted with great care.

B. Using Social Media Pages As A Marketing Tool.

Given their widespread reach it is not surprising that many businesses have established pages on social media sites such as LinkedIn, Facebook and Twitter to market their goods and services. In doing so, however, many businesses have failed to recognize the risk that the using such sites entails when not in conformity with a well conceived social media policy.

For example, inaccurate statements made on a company’s social media site about a company’s products or those of a competitor can expose the business to liability for either deceptive trade practices or false advertising under various state and federal statutes. In 2009, the Federal Trade Commission promulgated regulations requiring that anyone who endorses a company’s products or services is required to disclose any connection between the person making the endorsement and the manufacturer or supplier of those goods or services. Accordingly, businesses need to adopt a social media policy which informs their employees about the care they need to exercise in using their private social media sites when discussing the products or services of the employer or of a competitor of the employer. A well drafted policy will identify a limited number of official company spokespersons to post information on social media sites concerning the company and will require employees posting comments about the employer’s (or a competitors’) goods and services on their personal pages to include a disclaimer that they are speaking for themselves and not on behalf of the company.

A well drafted social media policy also will caution employees about disclosing confidential information or discussing on their social media pages information which the company has not yet disclosed to the market but which could affect publicly traded stock prices.

Companies should designate one or more representatives to be sure that all company trade names and copyrights are properly registered and for doing periodic website searches to determine if they are being misused.

Businesses using social media also must be cognizant of regulatory requirements of the particular industries in which they are engaged. For example, those engaged in the securities industry or in financial services are subject to state and federal record-keeping regulations with regard to information disclosed to the public and communication with customers. Social media sites do not have native archiving capabilities. Businesses that have an archiving obligation regarding communications with their customers or the public need to adopt a policy that will assure they are in compliance with their archiving obligations.

In this same vein, social media expressions are subject to discovery in litigation matters under both state and federal laws. A business that fails to properly archive social media expressions could face adverse litigation consequences.

The creation of a good social media policy requires a good action plan which identifies key points for use of social medial by both the business and its employees; warns about libelous and profane statements; communicates the importance of protecting sensitive company data and material information as well as the company’s obligation under law; sets rules for accessing social media sites and establishes clear consequences for abuse of the policy.

For questions, comments or additional information, please contact Robert Small, Partner in our Employment Practice Group, at rsmall@regerlaw.com or via phone at 215.495.6541.